NY Times: Conservative Justices Got Same-Sex Marriage on Docket

It was conservative Supreme Court justices who likely managed to get two same-sex marriage cases to be argued before the high court this week — not liberals, The New York Times reports.

Why? Most likely the conservative justices thought it was their best chance to get a ruling defeating same-sex marriage. After all, even they could see the tide of public support swinging the other way.

But they seemed to have thought they made a “terrible mistake” when arguments were heard on Tuesday, the Times says.

On Tuesday, while hearing arguments on California’s Proposition 8, banning gay marriage in the state, Justice Anthony Kennedy suggested that the case should be dismissed.

But Justice Antonin Scalia responded — the Times says with glee in his voice — “It’s too late for that now, isn’t it? We have crossed that river.”

That statement, the Times said, signaled that the conservative justices were responsible for granting the case a hearing.

Scalia, along with Justice Clarence Thomas and Samuel Alito were probably in the coalition to hear the case. Either Chief Justice John Roberts or Kennedy, a conservative, but sometimes swing vote, may have been the fourth — giving them a large enough number to put the case on the docket.

Conservatives weren’t certain they would win if they heard the Prop 8 case and one the next day on the federal Defense of Marriage Act, the Times noted. But they probably felt their chances would not get better as same-sex marriage becomes more common and accepted in the future.